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[Cite as Irvine v. State, 18 Tex. App. 51
N. B. Irvine v. The
1. Unlawful Carrying of
Weapons--Evidence.--On the trial of appellant for unlawfully carrying a
pistol upon his person, the State proved that he had a pistol on his person at
the place and time alleged in the information, and that he then and there
declared that he was a deputy sheriff of M. county, and had been over in another
county after a horse-thief. There was no evidence tending to disprove this
declaration of the defendant. Held that, inasmuch as the declaration
accompanied the act of carrying the pistol, it was part of the res
gestae, and was admissible in evidence; and, as it was reasonable and not
controverted, it sufficed to show that he was a civil officer engaged in the
discharge of an official duty at the time of the alleged offense, and therefore
was not culpable for having the pistol upon his person. There being no proof
that the defendant's declaration was false, the evidence does not support the
2. Same--Charge of the
Court.--In a trial for unlawfully carrying a pistol, there was evidence
tending to prove that the defendant was a traveler at the time and place he was
seen with the pistol, and the defense requested the court to instruct the jury
to acquit the defendant in case they found that he was a traveler at such time
and place. Held, that the instruction should have been given, filed, and
read by the court to the jury.
3. Charge of the
Court--Practice.--When an instruction to the jury is requested, the trial
judge should have it filed and officially certify it as "given" or "refused," as
the case may be. If given, it should be read to the jury. If refused, it should
not be allowed with the jury in their retirement. In the present case the
requested instruction was not certified by the trial judge nor read to the jury,
but they were permitted to take it with them on their retirement to consider of
their verdict. Held, that the requested instruction must be treated as
refused, and the jury should not have had it with them.
Appeal from the County
Court of Montague. Tried below before the Hon. Griffin Ford, County Judge.
The appellant was convicted of unlawfully carrying
a pistol. His punishment was affixed at a fine of $25.
J. B. Murch testified, for the State, that on Monday, December 22,
1884, in Montague county, Texas, between the towns of Bowie and Montague, he saw
the defendant pull a pistol from his pocket, and point it at a dog. Defendant
told the witness on that occasion that he was a deputy sheriff of Montague
county, and had been to Jack county in pursuit of horse-thieves. The State
Will Irvine, a brother of the defendant, testified in his behalf that
he and his brother left their home together on Saturday, December 20, 1884, and
went to the town of Montague. If the defendant had a pistol on his person at
that time, or during the time (p.52)they were in
Montague, the witness did not know it. Witness went with his brother, the
defendant, from Montague to the town of Bowie, a distance of eleven miles.
Witness left defendant in Bowie, from which town the defendant did not return
home until the night of Monday, December 22, 1884.
C. M. Crowell, a hardware merchant in the town of Montague, testified
that he sold the defendant a pistol on Saturday, December 20, 1884. Defendant
was on his way "out west," and witness did not see him again for several
John Bigham testified, for the defense, that he lived in Jack county,
Texas, thirty or thirty-five miles from Montague. The defendant came to
witness's house on the night of December 20, 1884, and left on the following
Monday morning. If he was a deputy sheriff, witness did not know it.
The motion for new trial complained of the insufficiency of the
evidence to support the verdict; of the charge of the court in failing to
instruct the jury that to convict they must believe the defendant guilty beyond
a reasonable doubt; of the refusal of the court to charge the traveler clause of
the statute relating to the carrying of weapons, and of the action of the court
in charging the jury to find the defendant guilty unless they believed he went
direct home after purchasing the pistol.
Sparks & Smith, for the appellant.
J. H. Burts, Assistant Attorney-General, for
Willson, Judge. It was proved by the State
that the defendant had on his person a pistol at the time and place charged in
the information, and that the defendant then and there declared that he was a
deputy sheriff of Montague county, and had been over in Jack county after a
horse-thief. There was no evidence disproving, or even tending to disprove, this
declaration of the defendant. In the absence of such evidence, said declarations
showed that he was not guilty of an offense in having the pistol, he being a
civil officer engaged in the discharge of official duty. (Penal
code, art. 319; Gardiner v. The State, 33 Texas,
692.) These declarations accompanied the act of carrying the pistol, and
were admissible in evidence as a part of the res gestae. They constituted
a reasonable explanation of his having the pistol, and it devolved upon the
State to show their falsity, which was not done; wherefore the evidence does not
support the conviction.
There was evidence tending to prove that, at the time and place
(p.53)the defendant was seen with the pistol, he
was traveling. A special charge was requested by defendant's counsel, the
purport of which was that if the jury believed from the evidence that at the
time defendant had the pistol he was a traveler, they should find him not
guilty. This charge, as it is made to appear by a bill of exceptions, was not
signed by the judge, nor by him read to the jury, but the jury were permitted to
take the same with them when they retired to consider of their verdict. The
evidence and the law demanded such a charge, and it should have been given.
Whether given or refused, it should have been certified to by the judge; that
is, he should have written upon it, "given" or "refused," and have signed his
name thereto officially, and caused the same to be filed among the papers in the
cause. (Code Crim. Proc., arts. 679, 680.) When a charge is
given, it is required that it shall be read by the judge to the jury.
(Code Crim. Proc., art. 683.) When a charge has been
requested and refused, the jury shall not be permitted to take the same with
them in their retirement. (Code Crim. Proc., art. 684.) It
appears from the bill of exceptions that the charge requested was neither
certified by the judge nor read by him to the jury. It therefore was not given,
but must be treated as a refused charge, and as such the jury should not have
been permitted to take it with them in their retirement.
Because the court refused to give the special charge requested by
defendant's counsel, and because the evidence does not warrant the conviction,
the judgment is reversed and the cause is remanded.
Reversed and remanded.
[Opinion delivered April 22, 1885.]